Justice attorneys make motions in residency case

Steven Allen Adams

For The Inter-Mountain

CHARLESTON — A Kanawha County judge has called on attorneys for Gov. Jim Justice to explain their motions in case regarding where the governor should reside in a hearing scheduled for today.

Judge Charles King ordered Justice’s attorneys, former U.S. Attorney for the Southern District of West Virginia Mike Carey and George Terwilliger, the former deputy attorney general under President George H. W. Bush, to appear at 11 a.m. Wednesday in Kanawha County Circuit Court to explain two motions filed July 29. The order was filed Aug. 12.

The case stems from a writ of mandamus filed in December by Delegate Isaac Sponaugle, D-Pendleton, requesting the court order Justice to reside at the seat of government as required by the West Virginia Constitution. Instead of living in Charleston, Justice chooses to live in Lewisburg in Greenbrier County.

The first motion by Justice’s legal team asks King for a stay of proceedings and to certify a list of questions for the West Virginia Supreme Court of Appeals to answer before the case proceeds any further. The questions focus on whether a writ of mandamus can be used to compel Justice to reside in Charleston, whether the constitutional provision is clear, whether the courts can determine the specific amount of time for the governor to live in Charleston and what “reside” means.

“The first four of the… certified questions go to whether mandamus is legally available to compel (Justice) to ‘reside’ at the seat of government, and are plainly questions of law,” Carey wrote. “Similarly, the meaning of ‘reside’ in this context, and the specific parameters of the duty to reside, are questions of law.”

Carey argues the Supreme Court needs to provide clarity on whether the writ of mandamus filed by Sponaugle is the best instrument to force Justice to follow the Constitution.

“If the West Virginia Supreme Court of Appeals agrees with (Justice) that the duty to ‘reside’ at the seat of government is too nebulous, undefined and laden with discretion to be properly controlled through mandamus, or that this case presents a non-justiciable political question, or that mandamus is unavailable to control the performance of continuing duties…then (Sponaugle’s) request for a writ of mandamus ordering (Justice) to ‘reside’ at the seat of government must be dismissed,” Justice’s attorneys said.

In the second motion filed by Justice’s attorneys, they request King issue findings of fact and conclusions of law as to why he dismissed a previous motion from them to dismiss Sponaugle’s case. King dismissed the Justice motion to dismiss on July 17 and ordered Justice’s attorneys to respond to Sponaugle’s requests for discovery by Aug. 15.

“In doing so, the court implicitly ruled that mandamus is at least theoretically available to compel (Justice) to ‘reside’ in Charleston,” Carey wrote in the second motion. “However, the court’s order did not contain findings of fact and conclusions of law that support and form the basis of the court’s decision.”

Carey said if Judge King does not grant their motion to certify questions, they plan to file a writ of prohibition and argue that the circuit court lacks jurisdiction or mandamus power to compel Justice to reside in Charleston.

This is the third residency case brought by Sponaugle against Justice. The first lawsuit was filed in June 2018 in Kanawha County Circuit Court. That case was dismissed after the state was not given a 30-day notice before Sponaugle filed his petition. The writ was filed again at the Supreme Court, which was rejected.